976-992
PENAL CODE
SECTION 976-992
976. (a) When the accusatory pleading is filed, the defendant shall
be arraigned thereon before the court in which it is filed, unless
the action is transferred to some other court for trial. However,
within any county, if the defendant is in custody, upon the approval
of both the presiding judge of the court in which the accusatory
pleading is filed and the presiding judge of the court nearest to the
place in which he or she is held in custody the arraignment may be
before the court nearest to that place of custody.
(b) A defendant arrested in another county shall have the right to
be taken before a magistrate in the arresting county for the purpose
of being admitted to bail, as provided in Section 821 or 822. The
defendant shall be informed of this right.
(c) Prior to being taken from the place where he or she is in
custody to the place where he or she is to be arraigned, the
defendent shall be allowed to make three completed telephone calls,
at no expense to the defendant, in addition to any other telephone
calls which the defendant is entitled to make pursuant to law.
977. (a) (1) In all cases in which the accused is charged with a
misdemeanor only, he or she may appear by counsel only, except as
provided in paragraphs (2) and (3). If the accused agrees, the
initial court appearance, arraignment, and plea may be by video, as
provided by subdivision (c).
(2) If the accused is charged with a misdemeanor offense involving
domestic violence, as defined in Section 6211 of the Family Code, or
a misdemeanor violation of Section 273.6, the accused shall be
present for arraignment and sentencing, and at any time during the
proceedings when ordered by the court for the purpose of being
informed of the conditions of a protective order issued pursuant to
Section 136.2.
(3) If the accused is charged with a misdemeanor offense involving
driving under the influence, in an appropriate case, the court may
order a defendant to be present for arraignment, at the time of plea,
or at sentencing. For purposes of this paragraph, a misdemeanor
offense involving driving under the influence shall include a
misdemeanor violation of any of the following:
(A) Subdivision (b) of Section 191.5.
(B) Section 23103 as specified in Section 23103.5 of the Vehicle
Code.
(C) Section 23152 of the Vehicle Code.
(D) Section 23153 of the Vehicle Code.
(b) (1) In all cases in which a felony is charged, the accused
shall be present at the arraignment, at the time of plea, during the
preliminary hearing, during those portions of the trial when evidence
is taken before the trier of fact, and at the time of the imposition
of sentence. The accused shall be personally present at all other
proceedings unless he or she shall, with leave of court, execute in
open court, a written waiver of his or her right to be personally
present, as provided by paragraph (2). If the accused agrees, the
initial court appearance, arraignment, and plea may be by video, as
provided by subdivision (c).
(2) The accused may execute a written waiver of his or her right
to be personally present, approved by his or her counsel, and the
waiver shall be filed with the court. However, the court may
specifically direct the defendant to be personally present at any
particular proceeding or portion thereof. The waiver shall be
substantially in the following form:
"Waiver of Defendant's Personal Presence"
"The undersigned defendant, having been advised of his or her
right to be present at all stages of the proceedings, including, but
not limited to, presentation of and arguments on questions of fact
and law, and to be confronted by and cross-examine all witnesses,
hereby waives the right to be present at the hearing of any motion or
other proceeding in this cause. The undersigned defendant hereby
requests the court to proceed during every absence of the defendant
that the court may permit pursuant to this waiver, and hereby agrees
that his or her interest is represented at all times by the presence
of his or her attorney the same as if the defendant were personally
present in court, and further agrees that notice to his or her
attorney that his or her presence in court on a particular day at a
particular time is required is notice to the defendant of the
requirement of his or her appearance at that time and place."
(c) The court may permit the initial court appearance and
arraignment of defendants held in any state, county, or local
facility within the county on felony or misdemeanor charges, except
for those defendants who were indicted by a grand jury, to be
conducted by two-way electronic audiovideo communication between the
defendant and the courtroom in lieu of the physical presence of the
defendant in the courtroom. If the defendant is represented by
counsel, the attorney shall be present with the defendant at the
initial court appearance and arraignment, and may enter a plea during
the arraignment. However, if the defendant is represented by counsel
at an arraignment on an information in a felony case, and if the
defendant does not plead guilty or nolo contendere to any charge, the
attorney shall be present with the defendant or if the attorney is
not present with the defendant, the attorney shall be present in
court during the hearing. The defendant shall have the right to make
his or her plea while physically present in the courtroom if he or
she so requests. If the defendant decides not to exercise the right
to be physically present in the courtroom, he or she shall execute a
written waiver of that right. A judge may order a defendant's
personal appearance in court for the initial court appearance and
arraignment. In a misdemeanor case, a judge may, pursuant to this
subdivision, accept a plea of guilty or no contest from a defendant
who is not physically in the courtroom. In a felony case, a judge
may, pursuant to this subdivision, accept a plea of guilty or no
contest from a defendant who is not physically in the courtroom if
the parties stipulate thereto.
(d) Notwithstanding subdivision (c), if the defendant is
represented by counsel, the attorney shall be present with the
defendant in any county exceeding 4,000,000 persons in population.
977.1. The resolution of questions of fact or issues of law by
trial or hearing which can be made without the assistance or
participation of the defendant is not prohibited by the existence of
any pending proceeding to determine whether the defendant is or
remains mentally incompetent or gravely disabled pursuant to the
provisions of either this code or the Welfare and Institutions Code.
977.2. (a) Notwithstanding Section 977 or any other law, in any
case in which the defendant is charged with a misdemeanor or a felony
and is currently incarcerated in the state prison, the Department of
Corrections may arrange for all court appearances in superior court,
except for the preliminary hearing, trial, judgment and sentencing,
and motions to suppress, to be conducted by two-way electronic
audiovideo communication between the defendant and the courtroom in
lieu of the physical presence of the defendant in the courtroom.
Nothing in this section shall be interpreted to eliminate the
authority of the court to issue an order requiring the defendant to
be physically present in the courtroom in those cases where the court
finds circumstances that require the physical presence of the
defendant in the courtroom. For those court appearances that the
department determines to conduct by two-way electronic audiovideo
communication, the department shall arrange for two-way electronic
audiovideo communication between the superior court and any state
prison facility located in the county. The department shall provide
properly maintained equipment and adequately trained staff at the
prison as well as appropriate training for court staff to ensure that
consistently effective two-way communication is provided between the
prison facility and the courtroom for all appearances that the
department determines to conduct by two-way electronic audiovideo
communication.
(b) If the defendant is represented by counsel, the attorney shall
be present with the defendant at the initial court appearance and
arraignment, and may enter a plea during the arraignment. However, if
the defendant is represented by counsel at an arraignment on an
information or indictment in a felony case, and if the defendant does
not plead guilty or nolo contendere to any charge, the attorney
shall be present with the defendant or if the attorney is not present
with the defendant, the attorney shall be present in court during
the hearing.
(c) In lieu of the physical presence of the defendant's counsel at
the institution with the defendant, the court and the department
shall establish a confidential telephone and facsimile transmission
line between the court and the institution for communication between
the defendant's counsel in court and the defendant at the
institution. In this case, counsel for the defendant shall not be
required to be physically present at the institution during any court
appearance that is conducted via electronic audiovideo
communication. Nothing in this section shall be construed to prohibit
the physical presence of the defense counsel with the defendant at
the state prison.
978. When his personal appearance is necessary, if he is in
custody, the Court may direct and the officer in whose custody he is
must bring him before it to be arraigned.
978.5. (a) A bench warrant of arrest may be issued whenever a
defendant fails to appear in court as required by law including, but
not limited to, the following situations:
(1) If the defendant is ordered by a judge or magistrate to
personally appear in court at a specific time and place.
(2) If the defendant is released from custody on bail and is
ordered by a judge or magistrate, or other person authorized to
accept bail, to personally appear in court at a specific time and
place.
(3) If the defendant is released from custody on his own
recognizance and promises to personally appear in court at a specific
time and place.
(4) If the defendant is released from custody or arrest upon
citation by a peace officer or other person authorized to issue
citations and the defendant has signed a promise to personally appear
in court at a specific time and place.
(5) If a defendant is authorized to appear by counsel and the
court or magistrate orders that the defendant personally appear in
court at a specific time and place.
(6) If an information or indictment has been filed in the superior
court and the court has fixed the date and place for the defendant
personally to appear for arraignment.
(b) The bench warrant may be served in any county in the same
manner as a warrant of arrest.
979. If the defendant has been discharged on bail or has deposited
money or other property instead thereof, and does not appear to be
arraigned when his personal presence is necessary, the court, in
addition to the forfeiture of the undertaking of bail or of the money
or other property deposited, may order the issuance of a bench
warrant for his arrest.
980. (a) At any time after the order for a bench warrant is made,
whether the court is sitting or not, the clerk may issue a bench
warrant to one or more counties.
(b) The clerk shall require the appropriate agency to enter each
bench warrant issued on a private surety-bonded felony case into the
national warrant system (National Crime Information Center (NCIC)).
If the appropriate agency fails to enter the bench warrant into the
national warrant system (NCIC), and the court finds that this failure
prevented the surety or bond agent from surrendering the fugitive
into custody, prevented the fugitive from being arrested or taken
into custody, or resulted in the fugitive's subsequent release from
custody, the court having jurisdiction over the bail shall, upon
petition, set aside the forfeiture of the bond and declare all
liability on the bail bond to be exonerated.
981. The bench warrant must be substantially in the following form:
County of ____. The People of the State of California to any
Sheriff, Marshal, or Policeman in this State: An accusatory pleading
having been filed on the ____ day of ____, A.D. ____, in the Superior
Court of the County of ____, charging C. D. with the crime of ____
(designating it generally); you are, therefore, commanded forthwith
to arrest the above named C. D., and bring him or her before that
Court (or if the accusatory pleading has been sent to another Court,
then before that Court, naming it), to answer said accusatory
pleading, or if the Court is not in session, that you deliver him or
her into the custody of the Sheriff of the County of ____.
Given under my hand, with the seal of said Court affixed, this
____ day of ____, A.D. ____.
By order of said Court.
(seal.) E.F., Clerk.
982. The defendant, when arrested under a warrant for an offense
not bailable, must be held in custody by the Sheriff of the county in
which the indictment is found or information filed, unless admitted
to bail after an examination upon a writ of habeas corpus; but if the
offense is bailable, there must be added to the body of the bench
warrant a direction to the following effect: "Or, if he requires it,
that you take him before any magistrate in that county, or in the
county in which you arrest him, that he may give bail to answer to
the indictment (or information);" and the Court, upon directing it to
issue, must fix the amount of bail, and an indorsement must be made
thereon and signed by the Clerk, to the following effect: "The
defendant is to be admitted to bail in the sum of ____ dollars."
983. The bench warrant may be served in any county in the same
manner as a warrant of arrest.
984. If the defendant is brought before a magistrate of another
county for the purpose of giving bail, the magistrate must proceed in
respect thereto in the same manner as if the defendant had been
brought before him upon a warrant of arrest, and the same proceedings
must be had thereon.
985. When the information or indictment is for a felony, and the
defendant, before the filing thereof, has given bail for his
appearance to answer the charge, the Court to which the indictment or
information is presented, or in which it is pending, may order the
defendant to be committed to actual custody, unless he gives bail in
an increased amount, to be specified in the order.
986. If the defendant is present when the order is made, he must be
forthwith committed. If he is not present, a bench warrant must be
issued and proceeded upon in the manner provided in this chapter.
987. (a) In a noncapital case, if the defendant appears for
arraignment without counsel, he or she shall be informed by the court
that it is his or her right to have counsel before being arraigned,
and shall be asked if he or she desires the assistance of counsel. If
he or she desires and is unable to employ counsel the court shall
assign counsel to defend him or her.
(b) In a capital case, if the defendant appears for arraignment
without counsel, the court shall inform him or her that he or she
shall be represented by counsel at all stages of the preliminary and
trial proceedings and that the representation is at his or her
expense if he or she is able to employ counsel or at public expense
if he or she is unable to employ counsel, inquire of him or her
whether he or she is able to employ counsel and, if so, whether he or
she desires to employ counsel of his or her choice or to have
counsel assigned, and allow him or her a reasonable time to send for
his or her chosen or assigned counsel. If the defendant is unable to
employ counsel, the court shall assign counsel to defend him or her.
If the defendant is able to employ counsel and either refuses to
employ counsel or appears without counsel after having had a
reasonable time to employ counsel, the court shall assign counsel.
The court shall at the first opportunity inform the defendant's
trial counsel, whether retained by the defendant or court-appointed,
of the additional duties imposed upon trial counsel in any capital
case as set forth in paragraph (1) of subdivision (b) of Section
1240.1.
(c) In order to assist the court in determining whether a
defendant is able to employ counsel in any case, the court may
require a defendant to file a financial statement or other financial
information under penalty of perjury with the court or, in its
discretion, order a defendant to appear before a county officer
designated by the court to make an inquiry into the ability of the
defendant to employ his or her own counsel. If a county officer is
designated, the county officer shall provide to the court a written
recommendation and the reason or reasons in support of the
recommendation. The determination by the court shall be made on the
record. Except as provided in Section 1214, the financial statement
or other financial information obtained from the defendant shall be
confidential and privileged and shall not be admissible in evidence
in any criminal proceeding except the prosecution of an alleged
offense of perjury based upon false material contained in the
financial statement. The financial statement shall be made available
to the prosecution only for purposes of investigation of an alleged
offense of perjury based upon false material contained in the
financial statement at the conclusion of the proceedings for which
the financial statement was required to be submitted. The financial
statement and other financial information obtained from the defendant
shall not be confidential and privileged in a proceeding under
Section 987.8.
(d) In a capital case, the court may appoint an additional
attorney as a cocounsel upon a written request of the first attorney
appointed. The request shall be supported by an affidavit of the
first attorney setting forth in detail the reasons why a second
attorney should be appointed. Any affidavit filed with the court
shall be confidential and privileged. The court shall appoint a
second attorney when it is convinced by the reasons stated in the
affidavit that the appointment is necessary to provide the defendant
with effective representation. If the request is denied, the court
shall state on the record its reasons for denial of the request.
(e) This section shall become operative on January 1, 2000.
987.05. In assigning defense counsel in felony cases, whether it is
the public defender or private counsel, the court shall only assign
counsel who represents, on the record, that he or she will be ready
to proceed with the preliminary hearing or trial, as the case may be,
within the time provisions prescribed in this code for preliminary
hearings and trials, except in those unusual cases where the court
finds that, due to the nature of the case, counsel cannot reasonably
be expected to be ready within the presecribed period if he or she
were to begin preparing the case forthwith and continue to make
diligent and constant efforts to be ready. In the case where the time
of preparation for preliminary hearing or trial is deemed greater
than the statutory time, the court shall set a reasonable time period
for preparation. In making this determination, the court shall not
consider counsel's convenience, counsel's calendar conflicts, or
counsel's other business. The court may allow counsel a reasonable
time to become familiar with the case in order to determine whether
he or she can be ready. In cases where counsel, after making
representations that he or she will be ready for preliminary
examination or trial, and without good cause is not ready on the date
set, the court may relieve counsel from the case and may impose
sanctions upon counsel, including, but not limited to, finding the
assigned counsel in contempt of court, imposing a fine, or denying
any public funds as compensation for counsel's services. Both the
prosecuting attorney and defense counsel shall have a right to
present evidence and argument as to a reasonable length of time for
preparation and on any reasons why counsel could not be prepared in
the set time.
987.1. Counsel at the preliminary examination shall continue to
represent a defendant who has been ordered to stand trial for a
felony until the date set for arraignment on the information unless
relieved by the court upon the substitution of other counsel or for
cause.
987.2. (a) In any case in which a person, including a person who is
a minor, desires but is unable to employ counsel, and in which
counsel is assigned in the superior court to represent the person in
a criminal trial, proceeding, or appeal, the following assigned
counsel shall receive a reasonable sum for compensation and for
necessary expenses, the amount of which shall be determined by the
court, to be paid out of the general fund of the county:
(1) In a county or city and county in which there is no public
defender.
(2) In a county of the first, second, or third class where there
is no contract for criminal defense services between the county and
one or more responsible attorneys.
(3) In a case in which the court finds that, because of a conflict
of interest or other reasons, the public defender has properly
refused.
(4) In a county of the first, second, or third class where
attorneys contracted by the county are unable to represent the person
accused.
(b) The sum provided for in subdivision (a) may be determined by
contract between the court and one or more responsible attorneys
after consultation with the board of supervisors as to the total
amount of compensation and expenses to be paid, which shall be within
the amount of funds allocated by the board of supervisors for the
cost of assigned counsel in those cases.
(c) In counties that utilize an assigned private counsel system as
either the primary method of public defense or as the method of
appointing counsel in cases where the public defender is unavailable,
the county, the courts, or the local county bar association working
with the courts are encouraged to do all of the following:
(1) Establish panels that shall be open to members of the State
Bar of California.
(2) Categorize attorneys for panel placement on the basis of
experience.
(3) Refer cases to panel members on a rotational basis within the
level of experience of each panel, except that a judge may exclude an
individual attorney from appointment to an individual case for good
cause.
(4) Seek to educate those panel members through an approved
training program.
(5) Establish a cost-efficient plan to ensure maximum recovery of
costs pursuant to Section 987.8.
(d) In a county of the first, second, or third class, the court
shall first utilize the services of the public defender to provide
criminal defense services for indigent defendants. In the event that
the public defender is unavailable and the county and the courts have
contracted with one or more responsible attorneys or with a panel of
attorneys to provide criminal defense services for indigent
defendants, the court shall utilize the services of the
county-contracted attorneys prior to assigning any other private
counsel. Nothing in this subdivision shall be construed to require
the appointment of counsel in any case in which the counsel has a
conflict of interest. In the interest of justice, a court may depart
from that portion of the procedure requiring appointment of a
county-contracted attorney after making a finding of good cause and
stating the reasons therefor on the record.
(e) In a county of the first, second, or third class, the court
shall first utilize the services of the public defender to provide
criminal defense services for indigent defendants. In the event that
the public defender is unavailable and the county has created a
second public defender and contracted with one or more responsible
attorneys or with a panel of attorneys to provide criminal defense
services for indigent defendants, and if the quality of
representation provided by the second public defender is comparable
to the quality of representation provided by the public defender, the
court shall next utilize the services of the second public defender
and then the services of the county-contracted attorneys prior to
assigning any other private counsel. Nothing in this subdivision
shall be construed to require the appointment of counsel in any case
in which the counsel has a conflict of interest. In the interest of
justice, a court may depart from that portion of the procedure
requiring appointment of the second public defender or a
county-contracted attorney after making a finding of good cause and
stating the reasons therefor on the record.
(f) In any case in which counsel is assigned as provided in
subdivision (a), that counsel appointed by the court and any
court-appointed licensed private investigator shall have the same
rights and privileges to information as the public defender and the
public defender investigator. It is the intent of the Legislature in
enacting this subdivision to equalize any disparity that exists
between the ability of private, court-appointed counsel and
investigators, and public defenders and public defender
investigators, to represent their clients. This subdivision is not
intended to grant to private investigators access to any confidential
Department of Motor Vehicles' information not otherwise available to
them. This subdivision is not intended to extend to private
investigators the right to issue subpoenas.
(g) Notwithstanding any other provision of this section, where an
indigent defendant is first charged in one county and establishes an
attorney-client relationship with the public defender, defense
services contract attorney, or private attorney, and where the
defendant is then charged with an offense in a second or subsequent
county, the court in the second or subsequent county may appoint the
same counsel as was appointed in the first county to represent the
defendant when all of the following conditions are met:
(1) The offense charged in the second or subsequent county would
be joinable for trial with the offense charged in the first if it
took place in the same county, or involves evidence which would be
cross-admissible.
(2) The court finds that the interests of justice and economy will
be best served by unitary representation.
(3) Counsel appointed in the first county consents to the
appointment.
(h) The county may recover costs of public defender services under
Chapter 6 (commencing with Section 4750) of Title 5 of Part 3 for
any case subject to Section 4750.
(i) Counsel shall be appointed to represent, in a misdemeanor
case, a person who desires but is unable to employ counsel, when it
appears that the appointment is necessary to provide an adequate and
effective defense for the defendant. Appointment of counsel in an
infraction case is governed by Section 19.6.
(j) As used in this section, "county of the first, second, or
third class" means the county of the first class, county of the
second class, and county of the third class as provided by Sections
28020, 28022, 28023, and 28024 of the Government Code.
987.3. Whenever in this code a court-appointed attorney is entitled
to reasonable compensation and necessary expenses, the judge of the
court shall consider the following factors, no one of which alone
shall be controlling:
(a) Customary fee in the community for similar services rendered
by privately retained counsel to a nonindigent client.
(b) The time and labor required to be spent by the attorney.
(c) The difficulty of the defense.
(d) The novelty or uncertainty of the law upon which the decision
depended.
(e) The degree of professional ability, skill, and experience
called for and exercised in the performance of the services.
(f) The professional character, qualification, and standing of the
attorney.
987.4. When the public defender or an assigned counsel represents a
person who is a minor in a criminal proceeding, at the expense of a
county, the court may order the parent or guardian of such minor to
reimburse the county for all or any part of such expense, if it
determines that the parent or guardian has the ability to pay such
expense.
987.5. (a) Every defendant shall be assessed a registration fee not
to exceed fifty dollars ($50) when represented by appointed counsel.
Notwithstanding this subdivision, no fee shall be required of any
defendant that is financially unable to pay the fee.
(b) At the time of appointment of counsel by the court, or upon
commencement of representation by the public defender, if prior to
court appointment, the defendant shall be asked if he or she is
financially able to pay the registration fee or any portion thereof.
If the defendant indicates that he or she is able to pay the fee or a
portion thereof, the court or public defender shall make an
assessment in accordance with ability to pay. No fee shall be
assessed against any defendant who asserts that he or she is unable
to pay the fee or any portion thereof. No other inquiry concerning
the defendant's ability to pay shall be made until proceedings are
held pursuant to Section 987.8.
(c) No defendant shall be denied the assistance of appointed
counsel due solely to a failure to pay the registration fee. An order
to pay the registration fee may be enforced in the manner provided
for enforcement of civil judgments generally, but may not be enforced
by contempt.
(d) The fact that a defendant has or has not been assessed a fee
pursuant to this section shall have no effect in any later
proceedings held pursuant to Section 987.8, except that the defendant
shall be given credit for any amounts paid as a registration fee
toward any lien or assessment imposed pursuant to Section 987.8.
(e) This section shall be operative in a county only upon the
adoption of a resolution or ordinance by the board of supervisors
electing to establish the registration fee and setting forth the
manner in which the funds shall be collected and distributed.
Collection procedures, accounting measures, and the distribution of
the funds received pursuant to this section shall be within the
discretion of the board of supervisors.
987.6. (a) From any state moneys made available to it for such
purpose, the Department of Finance shall, pursuant to this section,
pay to the counties an amount not to exceed 10 percent of the amounts
actually expended by the counties in providing counsel in accordance
with the law whether by public defender, assigned counsel, or both,
for persons charged with violations of state criminal law or
involuntarily detained under the Lanterman-Petris-Short Act, Division
5 (commencing with Section 5000) of the Welfare and Institutions
Code, who desire, but are unable to afford, counsel.
(b) Application for payment shall be made in such manner and at
such times as prescribed by the Department of Finance and the
department may adopt rules necessary or appropriate to carry out the
purposes of this section.
987.8. (a) Upon a finding by the court that a defendant is entitled
to counsel but is unable to employ counsel, the court may hold a
hearing or, in its discretion, order the defendant to appear before a
county officer designated by the court, to determine whether the
defendant owns or has an interest in any real property or other
assets subject to attachment and not otherwise exempt by law. The
court may impose a lien on any real property owned by the defendant,
or in which the defendant has an interest to the extent permitted by
law. The lien shall contain a legal description of the property,
shall be recorded with the county recorder in the county or counties
in which the property is located, and shall have priority over
subsequently recorded liens or encumbrances. The county shall have
the right to enforce its lien for the payment of providing legal
assistance to an indigent defendant in the same manner as other
lienholders by way of attachment, except that a county shall not
enforce its lien on a defendant's principal place of residence
pursuant to a writ of execution. No lien shall be effective as
against a bona fide purchaser without notice of the lien.
(b) In any case in which a defendant is provided legal assistance,
either through the public defender or private counsel appointed by
the court, upon conclusion of the criminal proceedings in the trial
court, or upon the withdrawal of the public defender or appointed
private counsel, the court may, after notice and a hearing, make a
determination of the present ability of the defendant to pay all or a
portion of the cost thereof. The court may, in its discretion, hold
one such additional hearing within six months of the conclusion of
the criminal proceedings. The court may, in its discretion, order the
defendant to appear before a county officer designated by the court
to make an inquiry into the ability of the defendant to pay all or a
portion of the legal assistance provided.
(c) In any case in which the defendant hires counsel replacing a
publicly provided attorney; in which the public defender or appointed
counsel was required by the court to proceed with the case after a
determination by the public defender that the defendant is not
indigent; or, in which the defendant, at the conclusion of the case,
appears to have sufficient assets to repay, without undue hardship,
all or a portion of the cost of the legal assistance provided to him
or her, by monthly installments or otherwise; the court shall make a
determination of the defendant's ability to pay as provided in
subdivision (b), and may, in its discretion, make other orders as
provided in that subdivision.
This subdivision shall be operative in a county only upon the
adoption of a resolution by the board of supervisors to that effect.
(d) If the defendant, after having been ordered to appear before a
county officer, has been given proper notice and fails to appear
before a county officer within 20 working days, the county officer
shall recommend to the court that the full cost of the legal
assistance shall be ordered to be paid by the defendant. The notice
to the defendant shall contain all of the following:
(1) A statement of the cost of the legal assistance provided to
the defendant as determined by the court.
(2) The defendant's procedural rights under this section.
(3) The time limit within which the defendant's response is
required.
(4) A warning that if the defendant fails to appear before the
designated officer, the officer will recommend that the court order
the defendant to pay the full cost of the legal assistance provided
to him or her.
(e) At a hearing, the defendant shall be entitled to, but shall
not be limited to, all of the following rights:
(1) The right to be heard in person.
(2) The right to present witnesses and other documentary evidence.
(3) The right to confront and cross-examine adverse witnesses.
(4) The right to have the evidence against him or her disclosed to
him or her.
(5) The right to a written statement of the findings of the court.
If the court determines that the defendant has the present ability
to pay all or a part of the cost, the court shall set the amount to
be reimbursed and order the defendant to pay the sum to the county in
the manner in which the court believes reasonable and compatible
with the defendant's financial ability. Failure of a defendant who is
not in custody to appear after due notice is a sufficient basis for
an order directing the defendant to pay the full cost of the legal
assistance determined by the court. The order to pay all or a part of
the costs may be enforced in the manner provided for enforcement of
money judgments generally but may not be enforced by contempt.
Any order entered under this subdivision is subject to relief
under Section 473 of the Code of Civil Procedure.
(f) Prior to the furnishing of counsel or legal assistance by the
court, the court shall give notice to the defendant that the court
may, after a hearing, make a determination of the present ability of
the defendant to pay all or a portion of the cost of counsel. The
court shall also give notice that, if the court determines that the
defendant has the present ability, the court shall order him or her
to pay all or a part of the cost. The notice shall inform the
defendant that the order shall have the same force and effect as a
judgment in a civil action and shall be subject to enforcement
against the property of the defendant in the same manner as any other
money judgment.
(g) As used in this section:
(1) "Legal assistance" means legal counsel and supportive services
including, but not limited to, medical and psychiatric examinations,
investigative services, expert testimony, or any other form of
services provided to assist the defendant in the preparation and
presentation of the defendant's case.
(2) "Ability to pay" means the overall capability of the defendant
to reimburse the costs, or a portion of the costs, of the legal
assistance provided to him or her, and shall include, but not be
limited to, all of the following:
(A) The defendant's present financial position.
(B) The defendant's reasonably discernible future financial
position. In no event shall the court consider a period of more than
six months from the date of the hearing for purposes of determining
the defendant's reasonably discernible future financial position.
Unless the court finds unusual circumstances, a defendant sentenced
to state prison shall be determined not to have a reasonably
discernible future financial ability to reimburse the costs of his or
her defense.
(C) The likelihood that the defendant shall be able to obtain
employment within a six-month period from the date of the hearing.
(D) Any other factor or factors which may bear upon the defendant'
s financial capability to reimburse the county for the costs of the
legal assistance provided to the defendant.
(h) At any time during the pendency of the judgment rendered
according to the terms of this section, a defendant against whom a
judgment has been rendered may petition the rendering court to modify
or vacate its previous judgment on the grounds of a change in
circumstances with regard to the defendant's ability to pay the
judgment. The court shall advise the defendant of this right at the
time it renders the judgment.
(i) This section shall apply to all proceedings, including
contempt proceedings, in which the party is represented by a public
defender or appointed counsel.
987.81. (a) In any case in which a defendant is provided legal
assistance, either through the public defender or private counsel
appointed by the court, upon conclusion of the criminal proceedings
in the trial court, or upon the withdrawal of the public defender or
appointed private counsel, the court shall consider the available
information concerning the defendant's ability to pay the costs of
legal assistance and may, after notice, as provided in subdivision
(b), hold a hearing to make a determination of the present ability of
the defendant to pay all or a portion of the cost thereof.
Notwithstanding the above, in any case where the court has ordered
the probation officer to investigate and report to the court pursuant
to subdivision (b) of Section 1203, the court may hold such a
hearing. The court may, in its discretion, hold one such additional
hearing within six months of the conclusion of the criminal
proceedings.
(b) Concurrent with the furnishing of counsel or legal assistance
by the court, the court shall order the defendant to appear before a
county officer designated by the court to make an inquiry into the
ability of the defendant to pay all or a portion of the legal
assistance provided. Prior to the furnishing of counsel or legal
assistance by the court, the court shall give notice to the defendant
that the court shall, after a hearing, make a determination of the
present ability of the defendant to pay all or a portion of the cost
of counsel. The court shall also give notice that, if the court
determines that the defendant has the present ability, the court
shall order him or her to pay all or a part of the cost. The notice
shall inform the defendant that the order shall have the same force
and effect as a judgment in a civil action and shall be subject to
enforcement against the property of the defendant in the same manner
as any other money judgment.
(c) The provisions of this section shall apply only in a county in
which the board of supervisors adopts a resolution which elects to
proceed under this section.
987.9. (a) In the trial of a capital case or a case under
subdivision (a) of Section 190.05, the indigent defendant, through
the defendant's counsel, may request the court for funds for the
specific payment of investigators, experts, and others for the
preparation or presentation of the defense. The application for funds
shall be by affidavit and shall specify that the funds are
reasonably necessary for the preparation or presentation of the
defense. The fact that an application has been made shall be
confidential and the contents of the application shall be
confidential. Upon receipt of an application, a judge of the court,
other than the trial judge presiding over the case in question, shall
rule on the reasonableness of the request and shall disburse an
appropriate amount of money to the defendant's attorney. The ruling
on the reasonableness of the request shall be made at an in camera
hearing. In making the ruling, the court shall be guided by the need
to provide a complete and full defense for the defendant.
(b) (1) The Controller shall not reimburse any county for costs
that exceed California Victim Compensation and Government Claims
Board standards for travel and per diem expenses. The Controller may
reimburse extraordinary costs in unusual cases if the county provides
sufficient documentation of the need for those expenditures.
(2) At the termination of the proceedings, the attorney shall
furnish to the court a complete accounting of all moneys received and
disbursed pursuant to this section.
(c) The Controller shall adopt regulations pursuant to Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2
of the Government Code, controlling reimbursements under this
section. The regulations shall consider compensation for
investigators, expert witnesses, and other expenses that may or may
not be reimbursable pursuant to this section. Notwithstanding the
provisions of Chapter 3.5 (commencing with Section 11340) of Part 1
of Division 3 of Title 2 of the Government Code, the Controller shall
follow any regulations adopted until final approval by the Office of
Administrative Law.
(d) The confidentiality provided in this section shall not
preclude any court from providing the Attorney General with access to
documents protected by this section when the defendant raises an
issue on appeal or collateral review where the recorded portion of
the record, created pursuant to this section, relates to the issue
raised. When the defendant raises that issue, the funding records, or
relevant portions thereof, shall be provided to the Attorney General
at the Attorney General's request. In this case, the documents shall
remain under seal and their use shall be limited solely to the
pending proceeding.
988. The arraignment must be made by the court, or by the clerk or
prosecuting attorney under its direction, and consists in reading the
accusatory pleading to the defendant and delivering to the defendant
a true copy thereof, and of the endorsements thereon, if any,
including the list of witnesses, and asking the defendant whether the
defendant pleads guilty or not guilty to the accusatory pleading;
provided, that where the accusatory pleading is a complaint charging
a misdemeanor, a copy of the same need not be delivered to any
defendant unless requested by the defendant.
989. When the defendant is arraigned, he must be informed that if
the name by which he is prosecuted is not his true name, he must then
declare his true name, or be proceeded against by the name in the
accusatory pleading. If he gives no other name, the court may proceed
accordingly; but if he alleges that another name is his true name,
the court must direct an entry thereof in the minutes of the
arraignment, and the subsequent proceedings on the accusatory
pleading may be had against him by that name, referring also to the
name by which he was first charged therein.
990. If on the arraignment, the defendant requires it, the
defendant must be allowed a reasonable time to answer, which shall be
not less than one day in a felony case and not more than seven days
in a misdemeanor or infraction case.
991. (a) If the defendant is in custody at the time he appears
before the magistrate for arraignment and, if the public offense is a
misdemeanor to which the defendant has pleaded not guilty, the
magistrate, on motion of counsel for the defendant or the defendant,
shall determine whether there is probable cause to believe that a
public offense has been committed and that the defendant is guilty
thereof.
(b) The determination of probable cause shall be made immediately
unless the court grants a continuance for good cause not to exceed
three court days.
(c) In determining the existence of probable cause, the magistrate
shall consider any warrant of arrest with supporting affidavits, and
the sworn complaint together with any documents or reports
incorporated by reference thereto, which, if based on information and
belief, state the basis for such information, or any other documents
of similar reliability.
(d) If, after examining these documents, the court determines that
there exists probable cause to believe that the defendant has
committed the offense charged in the complaint, it shall set the
matter for trial.
If the court determines that no such probable cause exists, it
shall dismiss the complaint and discharge the defendant.
(e) Within 15 days of the dismissal of a complaint pursuant to
this section the prosecution may refile the complaint.
A second dismissal pursuant to this section is a bar to any other
prosecution for the same offense.
992. (a) In any case in which the defendant is charged with a
felony, the court, immediately following the arraignment in the
superior court, shall require the defendant to provide a right
thumbprint on a form developed for this purpose. This fingerprint
form shall include the name and superior court case number of the
defendant, the date, and the printed name, position, and badge or
serial number of the court bailiff who imprints the defendant's
thumbprint. In the event the defendant is physically unable to
provide a right thumbprint, the defendant shall provide a left
thumbprint. In the event the defendant is physically unable to
provide a left thumbprint, the court shall make a determination as to
how the defendant might otherwise provide a suitable identifying
characteristic to be imprinted on the judgment of conviction. The
clerk shall note on the fingerprint form which digit, if any, of the
defendant's was imprinted thereon. In the event that the defendant is
convicted, this fingerprint form shall be attached to the minute
order reflecting the defendant's sentence. The fingerprint form shall
be permanently maintained in the superior court file.
This thumbprint or fingerprint shall not be used to create a
database. The Judicial Council shall develop a form to implement this
section.
(b) In the event that a county implements a countywide policy in
which every felony defendant's photograph and fingerprints are
permanently maintained in the superior court file, the presiding
judge of that county may elect, after consultation with the district
attorney, to continue compliance with this section.